The Electoral Finance Act and the Bill of Rights

May 16th, 2008 at 8:35 am by David Farrar

The NZ Herald reports on the arguments in court yesterday on the :

Aucklander – a fierce opponent of the Electoral Finance legislation – along with ACT MP Rodney Hide, Sensible Sentencing Trust spokesman Garth McVicar and Grey Power president Graham Stairmand, want to take a case to court, seeking a declaration that Attorney General Michael Cullen should have told Parliament that the law breached the Bill of Rights.

In the High Court at Wellington yesterday, Dr Cullen sought to have the case struck out. Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.

It is important to note the arguments yesterday were on the Crown’s application to strike the lawsuit out on the grounds of parliamentary privilege. It is only if they get past this strike out attempt, will the principal issues of whether the EFB and EFA breach the Bill of Rights get determined.

The legal arguments took all day and traversed time and space – judgments from three centuries, spanning four continents, were cited by lawyers from both sides. Justice Denis Clifford reserved his decision, a judgment which will instigate an intense constitutional debate on the roles of Parliament and the courts if he permits the case to proceed.

, for Boscawen and the other complainants, said the Electoral Finance Act contained myriad provisions which breached the Bill of Rights, and that the Attorney General should have warned Parliament of that – as section seven of the Bill of Rights obliged him to do.

In a sense there are two issues here – whether the as originally drafted breached the Bill of Rights and whether the final Electoral Finance Act is inconsistent with it.

The NZ Law Society and Human Rights Commission (and almost every lawyer in NZ who has offered an opinion on this) is adamant the original EFB was in breach, and I would put the chance of victory there as well over 95% if the strike out application is unsuccessful. I mean the original EFB would have required every NZer to swear a statutory declaration before even offering an opinion on a political issue. It was, to quote Nicky Hager, something you would expect from the Nazi Party.

The final version of the EFA, while still seriously flawed in my opinion, certainly was a significant improvement over the original EFB and the arguments over how it stacks up with the Bill of Rights are more finely balanced.

Since the 1st of January there have been around 470 articles (and from what I can tell not a single one is favourable to the EFA or the Government) in the NZPA database mentioning the Electoral Finance Act. The Government hoped it would disappear as an issue within a few weeks, and instead it has been a relentless string of negative stories.

I am looking forward to the first reading of the Electoral Finance Repeal Act – hopefully it can be introduced before Christmas.

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17 Responses to “The Electoral Finance Act and the Bill of Rights”

  1. Murray (8,843 comments) says:

    If it parliamentry privilage is used to prevent this case proceeding then we have a situation where any party can dismantle our entire system without regard to the bill of rights act.

    Our only option would be Guido Fawkes solution.

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  2. getstaffed (9,189 comments) says:

    The final version of the EFA, while still seriously flawed in my opinion, certainly was a significant improvement over the original EFB

    You mean it is a well formed, nicely polished and only slightly vile turd?

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  3. Steve Withers (98 comments) says:

    As I understand it, the NZ Bill of Rights isn’t supreme law, so any breach established is information that may or may not result in action to address the issue. If the government of the day chooses to not act on the matter, then that’s the end of it. This has happened several times under recent governments of both stripes. The legislation allowing the SIS to break into your house or office and remove whatever they ant with legal impunity is one example that comes to mind.

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  4. Steve Withers (98 comments) says:

    Murray: You’re absolutely correct. In New Zealand there is no supreme law. Parliament is absolute. This is why, prior to MMP, a single-party government under First Past the Post really WAS an elected dictatorship. That wasn’t rhetoric. It was reality. It still is, though under MMP the ability of any one party to act unilaterally and without restraint is now limited by the need to co-operate with other parties to govern. The political system is now MUCH more sensitive to the public mood between elections than it ever was prior to the introduction of MMP. Backdowns and turn-arounds are now commonplace. In the old days, hare-brained policies could be implemented by a ‘strong” government….and make a real mess of things. And they too often did.

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  5. Greg Sands (10 comments) says:

    Wouldn’t surprise me if the EFA is repealed in the next two months – it was only ever designed to skew the landscape for this year. It has served its purpose, virtually eliminating election spending in the first half of the year (no red/blue billboards etc), and when it goes, we’ll be <3 months out from the election, so the old rules cover it. Labour ends up looking ok for backing down, and National (and 3rd parties) have been hobbled.

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  6. Murray (8,843 comments) says:

    Very well then.

    We’ll start hoarding at November then everybody.

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  7. david (2,565 comments) says:

    “The political system is now MUCH more sensitive to the public mood between elections than it ever was prior to the introduction of MMP.”

    Not quite Steve

    The fact is that the political system is still at the total and unrestrained mercy of whatever venal and corrupt grouping within the Parliament can get together a majority of votes on confidence and supply, at least before you knew who to blame or hold accountable. Apart from that it is a “anything goes” and I would venture to suggest is even more vulnerable to undeclared “mandates” for change that the electors were never given an opportunity to vote on.

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  8. Inventory2 (10,245 comments) says:

    Meanwhile Sonic will continue to claim that DPF’s sole intention in life is to suppress free speech!

    I guess we can make allowances for him yesterday, The pain of Glasgow Rangers losing to the Russians must have been difficult for him to bear!!!

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  9. getstaffed (9,189 comments) says:

    yeah, our little blue-rinse hedgie did his personal brand a spot of damage yesterday. too much trollie kool-aide for breakfast perhaps.

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  10. Frank (320 comments) says:

    “The Electoral Finance Act and the Bill of Rights

    Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.”

    Bill of Rights Act 1688, section 1 having application in New Zealand by virtue of the Imperial laws Application Act 1988. the relevant law states:

    “That the freedome of speech and debates of proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.”

    N B The words “Ought not to be.” It means it shouln’t be but it could be. If it couldn’t be, then the words “Must Not” should have been used?

    Only the Courts are empowered to determine legal issues including how particular statutory provisions should be interpreted.

    I rest my case.

    I felt so strongly about it that this same case was lodged with the Police Commissioner in November last.

    In dismissing the case, the Commissioner quoted the S1 of the Bill of Rights 1668. He usurped the functions of the Courts.

    I renewed the case on 11 May 2008.

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  11. djm210 (16 comments) says:

    I’m going to try and keep this as simple as I can, yet I feel it will all be very law to all you lay people out there..

    No law in New Zealand is supreme,^ instead, the constitution of New Zealand can be found in a multitude of un-entrenched subordinate legal and extra legal sources. Although this makes our constitution somewhat convoluted, it is this principle that supports the constitutions greatest features.

    In my opinion the EFA is unconstitutional for two reasons.

    (1) It did not follow legislative procedure

    The New Zealand Parliament *claims* to possess unfettered legislative autonomy, yet it is still subject to its own rules. After all, it is a ‘government under the law’. The government is not the law. That would be despotism.

    For example, if an Act has not achieved royal assent through the Crown, it is not law. If it has not had three readings in the house, it is not law. In the case of Fitzgerald v Muldoon, PM Muldoon attempted to declare a superannuation scheme imposed by legislation void. Because he acted as a dictator and did not repeal the scheme through an Act of repeal or implied repeal through Parliament his actions were held to be ultra vires and therefore unconstitutional by the courts. This is the most important constitutional case to ever be decided in New Zealand *so far*.

    Section 7 of the Bill of Rights Act 1990 requires the Attorney-General to draw to the attention of Parliament the introduction of any Bill that is inconsistent with the Act. It provides a *constitutional* check, implicating that although Parliament *can* override fundamental liberties expressed in the BORA, it must be extremely careful when doing so. No notification was made. The EFA clearly goes against the BORA (as discussed by people above). It has not been through due legislative process as outlined by our constitution. It is not law.

    (2) It egregiously violated fundamental rights
    This is where it gets exceedingly complicated. Although you may not know it, throughout the history of modern government, there has been a long winded battle between the tenured judiciary and the legislation. Each claiming superiority. US the Courts won the ability to strike down legislation that is unconstitutional in Marbury v. Madison.

    Traditionally, the New Zealand Parliament has enjoyed legislative sovereignty. This is a view was challenged by Lord Coke in the Case of Proclamations:

    “The King ought not be subject to man, but subject to God and the law, because the law makes him King”.

    It is also a view that was expressed by Lord Cooke of Thorndon in New Zealand. In Taylor v New Zealand Poultry Board Cooke noted that in the most exceptional circumstances, an Act of Parliament that egregiously violated fundamental rights might be void at common law: “even Parliament could not override them.” In England the House of Lords in Jackson v Attorney-General stated that “[t]he rule of law enforced by the Courts is the ultimate controlling factor on which our constitution is based.” “The rule of law places responsibility upon the courts to define limits to Parliaments legislative autonomy.”

    I feel that we are at a time where Democracy can be recognised as is a fundamental right.

    A good lawyer could argue this. At the moment we have some *incredibly* activist judges and they would thrive off the opportunity to make constitutional history.

    ^Exception being S.268 of the Electoral Act 1993, which is singly entrenched

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  12. djm210 (16 comments) says:

    >>insert at top of above comment<<

    The first hurdle will be easy to overcome — whilst Parliament has a privillege dictating its own affairs under the Bill of Rights Act 1689, once legislation is assented to, it is the job of the courts to maintain it. For example, whilst the courts would have no jurisdiction over the standing orders, they certainly have jurisdiction over the process of legislation as imposed by statute. Because the Bill of Rights Act 1990 is legislation, it is the duty of the courts to maintain it.

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  13. freethinker (688 comments) says:

    Here is a draft repeal for discussion – This bill expunges from inception the EFB as if it never existed and all those who voted for it are not entitled to any remuneration or payment form public funds except for state superannuation from this date. Following the pattern set by Her Ugliness Queer Helen the last the bill will be pushed through under urgency.

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  14. John Boscawen (146 comments) says:

    Firstly djm210 thank you for taking the time and the trouble to outline the situation as you see it.

    The strike out proceedings took the entire day. The court rose at 4.55pm and the the judge reserved his decision. The Crown’s case for strike was outlined in a 25 page submisison, and we responded with 37 pages of submisions of our own. These were each prepared and swapped in March. They are now public documents. I would be happy to email them to anyone who wanted a copy to understand the issues in detail. Just contact me on john@boscawen.co.nz .

    This case is motivated by the Attorney General’s failure to notify parliament that the Electoral Finane Bill was not inconsistent with the NZ Bill of Rights Act 1990 as he is required to do so under section 7. Incredibly in June last year the Crown Law Office gave the Attorney General Michael Cullen a legal opinion that said amongst other things, that it is perfectly acceptable for the government to pass a law that would require all New Zealanders who wish to express an opinion on any political issue in election year to first, as a minimum, sign a statutory declaration before spending a single dollar doing so. That defies belief. It can not go unchallenged. To do so runs the risk that the Crown Law Office could issue a similiar opinion in future and who knows what other freedoms we might lose.

    The court case is not about trying to overturn the law. We can not do that. We are merely trying to hold the Attorney General to account. He is a member of the executive and has a responsibility to meet his obligations under s7 of the BORA. If the Attorney General can not be held to account there is no point in having the provision in the BORA in the first place.

    We initiated this case last October. We sort urgency. The Crown opposed that. We wanted to have the issue resolved before the Act was passed. The Crown did all it could to prevent the issue being adjudicated before the Act was passed. Yesterday they tuned up and siad the Act was passed and so there was no point in bringing the procesdings. We disagree. The Crown Law Office has established a precedent of saying it is acceptable to require all New Zealanders to sign a stautory declaration before making a political comment in election year. The Attorney General , by his silence, obviously agrres with them and thinks it is acceptable also. This says a lot about what the Attorney General thinks is acceptable in our democracy, and wh yevery effort must be made to protect it. If he thught the Crown Law Ofice was wrong, he could have said so and gone ahead and advised parliament accordingly. We want the court to rule that it is not accetable.

    Given the delays we faced in getting this matter before the courts, we updated our statement of claim seeking a declartion that the Electoral Finance Act, as passed, is also inconsistent with the BORA. Such a ruling will not rescind or overturn it, however it may cause those members of parliament who voted for it, and particular members of the Green Party to think again why they were prepared to pass a law that was inconsistent with our Bill of Rights.

    Unlike David Farrar , I am not looking to see the Electoral Finance Repeal Act passed in December. I want it passed before the election.

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  15. side show bob (3,660 comments) says:

    Best of luck John but I don’t fancy your chances of getting any sort of “justice” out of any sort of court in this country. You are pushing shit up hill with a sharp stick when the Attorney General’s nickname is Skippy and the Crown Law Office is full of kangaroos.

    Steve Withers, surly you jest man.” In the old days, hare-brained polices could be implemented by a “strong” government …..and make a real mess of it”. May I suggest you replace strong with weak and you get the bloody same outcome.

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  16. Frank (320 comments) says:

    djm210: Many thanks for an extremely valuable contribution, presented in such an understandable manner.

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  17. djm210 (16 comments) says:

    Thankyou John for everything you are doing. You are a champion of democracy.

    I completely understand the legal path you are taking. Having the EFA declared repugnant to s.14 of the Bill of Rights Act is momentous. As you discussed, it will hold the A-G accountable. It is a statutory requirement for the A-G to notify the House if Bills before it are repugnant to the BORA. He failed to do so.

    Once this has been established, I feel the EFA must be sent back to Parliament. This issue goes to the heart of constitutionalism in this country. The government was not acting within the law when the Bill was passed. There are all sorts of reasons why s.7 is in place — the most prominent would be that MPs would be less likely to vote for a Bill contrary to the BORA (yet I feel that all this is somewhat immaterial to the true issue raised). And that issue as I see it, is whether or not, an Act of Parliament passed, without due process of law, can be held to be law good law in New Zealand.

    There is no remedy provided under s.7 to the BORA. Under the Interpretation Act 1999 the courts can implement their own.

    Anyway, it is all very interesting. I would love to know what Phillip Joseph and Sir Geoffrey Palmer think of the subject. Anything Palmer said would be very influential – it was him that wrote the BORA afterall!

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